39 posts from May 2012

05/31/2012

Earlier this month the liberal advocacy group Common Cause filed this case challenging the constitutionality of the Senate's filibuster rule. The lead attorney is Emmet Bondurant, author of this 2010 article on the subject. Ezra Klein has a sympathetic account in the Washington Post: Is the Filibuster Unconstitutional?:

At the core of Bondurant’s argument is a very simple claim: This isn’t what the Founders intended. The historical record is clear on that fact. The framers debated requiring a supermajority in Congress to pass anything. But they rejected that idea.

In Federalist 22, Alexander Hamilton savaged the idea of a supermajority Congress, writing that “its real operation is to embarrass the administration, to destroy the energy of government and to substitute the pleasure, caprice or artifices of an insignificant, turbulent or corrupt junta, to the regular deliberations and decisions of a respectable majority.”

In Federal 58, James Madison wasn’t much kinder to the concept. “In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule; the power would be transferred to the minority.”

The Constitution confers on each House of Congress the broad authority to “determine the Rules of its Proceedings.” (Art. I, § 5.) Each House exercises that authority by a majority of members present and constituting a quorum. (The Constitution states that “a Majority of each [House] shall constitute a Quorum.”) As I argued in one of my very first Bench Memos posts seven years ago, the authority of each House to “determine” its rules necessarily includes the authority to revise them at any time—again, by the same vote of a majority of members present and constituting a quorum.

In other words, I believe that any Senate rule that requires a supermajority vote may at any time be superseded or displaced by a majority of the Senate (not just by a majority vote of the entire Senate, but even by a majority of senators present and constituting a quorum—which majority could be as few as 26 senators). That’s why, for example, it was entirely proper for Senate Republicans in 2005 to seek to abolish, by majority vote, the practice of filibustering judicial nominees.

In sum, the Senate filibuster, far from being (as Common Cause contends) “inconsistent with the principle of majority rule,” continues to exist precisely because a majority of senators allows it to.

For some fun history, see this 2005 op-ed by John McGinnis and Mike Rappaport. As they describe, at that time Senate Majority Leader Bill Frist argued that the filibuster was unconstitutional (Bondurant's position); Senate Republicans sought to eliminate the judicial filibuster by majority vote; and Senate Democrats sought to filibuster the change to the filibuster rule. McGinnis and Rappaport conclude, like Ed Whelan, that the filibuster rule is constitutional but that the Constitution requires it to be changeable by majority vote:

[The] constitutionally correct view is that the Senate can choose to retain the filibuster rule, but that a majority must be able to change it. The Senate can thereby exercise its full constitutional authority to fashion rules of procedure but past majorities of the Senate cannot put current majorities in a procedural straitjacket.

05/30/2012

Our vaunted system of “separation of powers” and “checks and balances” — a legacy of the founders’ mistrust of “factions” — means that we rarely have anything that can truly be described as a “government.” Save for those rare instances when one party has hefty control over four branches — the House of Representatives, the Senate, the White House and the Supreme Court — gridlock threatens. Elections are increasingly meaningless, at least in terms of producing results commensurate with the challenges facing the country.

But if one must choose the worst single part of the Constitution, it is surely Article V, which has made our Constitution among the most difficult to amend of any in the world. The last truly significant constitutional change was the 22nd Amendment, added in 1951, to limit presidents to two terms. The near impossibility of amending the national Constitution not only prevents needed reforms; it also makes discussion seem futile and generates a complacent denial that there is anything to be concerned about.

This essay, part of a symposium on Jack Balkin's Constitutional Redemption and Sanford Levinson's Constitutional Faith, seeks to explain the curious disregard many originalists show toward the Fourteenth Amendment. On common originalist premises, analysis of the text, history, and structure of the Fourteenth Amendment should predominate in discussions of incorporated rights, in affirmative action cases, and in federalism disputes, and yet originalist interventions into such discussions tend to minimize the amendment and Reconstruction-era history more generally. This essay suggests that the Fourteenth Amendment and Reconstruction represent less usable history than the Founding for several reasons: the Reconstruction amendments were largely failures in their own time; the open-ended language of the Fourteenth Amendment is not well-suited to settlement of modern controversies; and the Reconstruction era holds an awkward and contested place within our national memory. These limitations are consistent with the notion that originalism in practice is as much an ethical as a hermeneutic project.

Professor Greene presented a version of this paper at the University of San Diego Law School's originalism works-in-progress conference in February.

05/28/2012

It's one of the clearest, easiest-to-understand provisions in the Constitution. And Harry Reid's Senate flounts it routinely.

The Origination Clause in Article I, Section 7 states: “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” In addition to clarity, this provision has an even greater virtue: It serves a very good purpose.

McDonald v. Chicago, which incorporated the Second Amendment right to arms, was the first Supreme Court ruling to address incorporation in many decades. It was an unusual ruling, in that the Court’s “conservative wing” took what had been traditionally the liberal approach, while its “liberal wing” suddenly became very conservative. Indeed, Justice Thomas staked out the most liberal position, while Justice Stevens staked out the most conservative one, and for good measure Justice Scalia found that precedent can trump originalism. It was, in short, "the world turned upside down."

This article outlines the virtues, and problems, of the three major opinions in McDonald, and suggests solutions to some of the problems uncovered. The plurality opinion by Justice Alito is certainly faithful to precedent, although it highlights some illogical aspects of substantive due process incorporation. The concurrence by Justice Thomas is faithful to legislative history and original public meaning, but would have required overruling more than a century of case law. The dissent by Justice Breyer opens by proposing a very complicated, and perhaps ultimately meaningless, legal test with no basis in precedent, and alternately sets forth a very narrow application of the existing test – an application so narrow as to call into question almost all the Court’s past rulings on the issue.

In recent years, textualist scholars have advanced the argument that the First Amendment only applies to legislative action, and thus that executive authority is unencumbered by the First Amendment’s prohibitions. According to this argument, the words “Congress shall make no law” cannot be construed to limit the powers of the executive branch. This brief Article seeks to show why the textualist argument is logically flawed. If Congress can make no law abridging First Amendment freedoms, then it cannot empower the executive to do the same. Statutes authorizing executive action either (a) do not empower the executive to abridge First Amendment freedoms, in which case executive actions abridging First Amendment freedoms are ultra vires, or (b) do empower the executive to abridge First Amendment freedoms, in which case the statute itself violates the First Amendment. In either case, executive actions abridging First Amendment freedoms are unconstitutional. Importantly, this Article’s thesis only applies where the executive acts pursuant to legislative authorization under Article I of the Constitution. Where the executive acts pursuant to its own Article II inherent authority, then the textualist scholars’ argument is stronger. When, for example, the President acts as “Commander in Chief,” a strict textualist could conclude that the President is not bound by the First Amendment. Notably, federal courts’ deference to the executive in First Amendment cases involving military matters already seems to reflect the principle that the force of the First Amendment’s prohibitions might hinge on the source (Article I vs. Article II) of the executive authority being exercised.

Seems right to me. A similar and less easily resolved challenge is whether a treaty (not made by "Congress," and law of its own force under Article VI) can infringe First Amendment rights.

05/24/2012

A couple of days ago, Mike Ramsey argued that the provision of health insurance is interstate commerce. Ramsey writes:

My insurer (in California) is Anthem Blue Cross, which claims to be the largest health insurer in California; it's a subsidiary of WellPoint, Inc., a company headquartered in Indianapolis with health insurance operations in at least 14 states. This all sounds pretty interstate to me, and I think my insurance situation is fairly typical, although I know little about the details of the health insurance industry and I could be persuaded otherwise. (It would be different if WellPoint were just a passive investor in independent insurance operations within various states, but my sense is that this is an integrated and centrally-managed operation.)

Let’s assume, as I think plausible, that the sale of insurance is commerce. But is it interstate commerce? It seems clear that the sale of insurance by a California corporation to California residents would be intrastate insurance. How does the ownership of the California corporation change things, if at all?

The mere fact a corporation has shareholders from other states seems unlikely to turn the sale of insurance from a California corporation to Californians into interstate commerce. After all, that would make all actions of publicly held corporations interstate. But why doesn’t the existence of these out of state shareholders make the corporation’s actions interstate? One very plausible reason is that there is a formal distinction between the shareholders of the corporation and the corporation itself. It is the corporation, not the shareholders, that are engaged in the action. It matters where the business is located, not its shareholders. And the corporation is providing the insurance in California.

If that analysis is true, then how does it apply to an Indiana Corporation that owns and centrally manages a California subsidiary? Under this analysis, the fact that an Indiana Corporation owns the California subsidiary does not matter. It is the California subsidiary that is legally making the decisions to provide the insurance and the insurance is occurring in California.

But it might be argued, as Mike Ramsey implies, that if the decisions are actually made in Indiana – “if its a centrally managed operation” – then the provision of insurance is not occurring only in California but also in Indiana. This is possible, but the opposite conclusion is also possible. It is true that one might say that the decisions in fact are made in Indiana. But legally, based on my limited memory of corporate forms, the decision is technically made by the California corporation (ultimately the President or the Board) and that might be what counts. It is not clear to me which of these two possibilities is the right answer here.

What then are the implications for the provision of health insurance by Anthem? First, Anthem might not be centrally managed in Indiana and therefore would be engaged in intrastate commerce. Second, Anthem might be centrally managed, and then whether it is engaged in interstate commerce would depend on how one answers the question I raised in the previous paragraph. Finally, I should note that some health insurance corporations may not be subsidiaries of corporations in other states and those health insurers will then be engaged in intrastate commerce. (Some would attempt to claim that the intrastate provision of health insurance can be regulated under the Necessary and Proper Clause as affecting the interstate market for health insurance, but I am skeptical of this power except in the most exceptional cases.)